304 F.

3d 308

UNITED STATES of America, Appellant

v.
Robert Alexander BEST.
No. 01-4321.

United States Court of Appeals, Third Circuit.

Argued: May 13, 2002.
Decided: September 18, 2002.

David L. Atkinson, United States Attorney, Sarah L. Weyler (argued),

Assistant United States Attorney, Office of United States Attorney,
Charlotte Amalie, for Appellant.
David J. Comeaux (argued), Ogletree, Deakins, Nash, Smoak & Stewart,
St. Thomas, for Appellee.
Before AMBRO, FUENTES, and GARTH, Circuit Judges.
FUENTES, Circuit Judge.

In this case, defendant Robert Best was seized by the Coast Guard from beyond
the territorial sea of the United States and indicted for attempting to smuggle
aliens into the country. We must decide whether Best, whose vessel was sailing
under a Brazilian flag, may be tried in federal district court even though the
United States did not obtain Brazil's consent to intercept the foreign vessel and
seize the defendant. The District Court entered an order dismissing the
indictment, holding that the court lacked jurisdiction because the defendant had
been seized in violation of international law. On appeal, the government
contends that the court has the power to try the defendant despite any violations
of international law.

Because it is well established that a court's power to try a defendant is

ordinarily not affected by the manner in which the defendant is brought to trial,
and because we conclude that no exceptions to this general rule apply here, in
light of the facts surrounding the defendant's seizure, we will reverse the
District Court's dismissal order and remand the case for trial.

I.
3

On May 16, 2001, the United States Coast Guard patrol boat "Nunivak" was
patrolling the waters near St. Croix, U.S. Virgin Islands. That evening, the
patrol boat spotted a large, wooden cargo vessel named the Cordeiro de Deus
approximately sixteen nautical miles east of St. Croix. This placed the vessel
within the twenty-four nautical mile "contiguous zone" of the United States,
but outside the country's territorial waters.1 According to the government, at the
time the Coast Guard spotted the vessel on radar, the Cordeiro de Deus
appeared to be on a standard smuggling route headed for St. John or St.
Thomas. After the vessel failed to respond to several radio calls, an officer of
the Nunivak formed a four-person boarding team and instructed it to contact the
Cordeiro de Deus. He further instructed the boarding team to ask right of visit
questions of the crew and to seek consent to board the vessel.

Traveling in a small, inflatable boat, the boarding team approached the

starboard side of the Cordeiro de Deus and observed five men standing on that
side of the deck. A member of the boarding team who was a Spanish interpreter
asked the men questions in both English and Spanish, but determined that they
spoke neither language. One of the crew members went inside the boat and
came back with a small Brazilian flag. Because the interpreter knew that
Portuguese is spoken in Brazil and that Spanish and Portuguese have many
words in common, he communicated to the crew in Spanish and with hand
signals.

The crew members understood that the Coast Guard sought to come aboard and
indicated their permission for the boarding team to do so. Best was one of the
five men standing on the deck of the Cordeiro de Deus and was identified by
the other men as the captain of the vessel. When asked about their destination
and cargo, the men indicated that they were en route to Martinique to buy
cigarettes and that their last port of call was Brazil. The boarding team also
asked to inspect the vessel's documents. In response, the crew produced
paperwork from Brazil and one document that contained a stamp from
Suriname. The United States claims that the boarding team was unable to
determine the nationality of the Cordeiro de Deus from these documents. The
vessel bore no markings of a homeport.

The boarding team next began a safety inspection. During the inspection, two
members of the boarding team discovered a group of Chinese nationals that
appeared to be hiding in the cargo hold. The boarding team reported its findings
to the Nunivak, which, after contacting Coast Guard authorities, was instructed
to escort the Cordeiro de Deus close to St. Croix so that agents from the United

States Immigration and Naturalization Service ("INS") could interview the

individuals aboard the vessel. Two INS agents boarded the Cordeiro de Deus
late the next afternoon and determined that there were thirty-three Chinese
nationals on board. The next day, with the assistance of a Chinese interpreter,
the INS agents interviewed the Chinese nationals. That afternoon, after
transporting the Chinese nationals and all of the crewmembers to St. Croix, the
agents interviewed Best and, on the following day, completed interviews with
the other crew members.
7

On the morning of May 19, 2001, the government presented Best and four
others for an advice of rights on the criminal charge of alien smuggling. A
grand jury returned an indictment charging Best with conspiring to bring illegal
aliens to the United States in violation of 8 U.S.C. 1324(a)(1)(A)(v)(I) and
bringing illegal aliens to the United States in violation of 8 U.S.C. 1324(a)(1)
(A)(i).2 On August 1, 2001, Best filed a motion to dismiss the indictment,
arguing that the District Court lacked personal jurisdiction over him because
the United States had taken him from the high seas in violation of international
law. The District Court agreed with Best, holding that the United States was
required to obtain consent from Brazil under international law before it could
seize Best from the Cordeiro de Deus and try him for violating the immigration
laws. Because the United States failed to secure such consent, the court
concluded that it lacked jurisdiction over Best and entered an order dismissing
the indictment on October 26, 2001.

The government filed a motion for reconsideration on November 5, 2001 and a

notice of appeal on November 21, 2001.3 Due to the filing of the notice of
appeal, the District Court denied the government's motion for reconsideration
for lack of jurisdiction on November 29, 2001.

II.
9

The District Court had subject matter jurisdiction over this case pursuant to 48
U.S.C. 1612 and 4 V.I.C. 32. We have appellate jurisdiction under 28
U.S.C. 1291. Because whether the District Court properly dismissed the
indictment for lack of jurisdiction is a question of law, we exercise plenary
review. United States v. Ezeiruaku, 936 F.2d 136, 139 (3d Cir. 1991).

III.
10

At issue in this appeal is whether the District Court has personal jurisdiction
over a defendant charged with violating the immigration laws and seized from a
foreign vessel on the high seas. It is well established that a court's power to try

a defendant is ordinarily not affected by the manner in which the defendant is

brought to trial. See Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96
L.Ed. 541 (1952) (upholding conviction of defendant who had been kidnapped
in Chicago by Michigan officers and brought to trial in Michigan); Ker v.
Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886) (holding that
court's power to try defendant for crime was not impaired by forcible abduction
of defendant from Peru); see also United States v. Romero-Galue, 757 F.2d
1147, 1151 n. 10 (11th Cir.1985) (noting that "[j]urisdiction over the person of
a defendant `in a federal criminal trial whether citizen or alien, whether arrested
within or beyond the territory of the United States,' is not subject to challenge
on the ground that the defendant's presence before the court was unlawfully
secured") (quoting United States v. Winter, 509 F.2d 975, 985-86 (5th
Cir.1975)). This general rule, commonly referred to as the Ker-Frisbie doctrine,
"rest[s] on the sound basis that due process of law is satisfied when one present
in court is convicted of crime after having been fairly apprised of the charges
against him and after a fair trial in accordance with constitutional procedural
safeguards." Frisbie, 342 U.S. at 522, 72 S.Ct. 509.
11

The Supreme Court explained in Frisbie that "[t]here is nothing in the

Constitution that requires a court to permit a guilty person rightfully convicted
to escape justice because he was brought to trial against his will." Id. In the
years following Frisbie, however, it appeared increasingly difficult to reconcile
the strict application of its rule with the expanded interpretation of due process
expressed by the Court in later cases such as Mapp v. Ohio, 367 U.S. 643, 646,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Court held that due process
requires application of the exclusionary rule in state prosecutions. In 1970,
nearly two decades after Frisbie had been decided, we observed that the
doctrine's validity "has been seriously questioned because it condones illegal
police conduct." Gov't of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d
Cir.1970). Four years later, the Second Circuit, citing the "erosion" of the KerFrisbie doctrine, carved out an exception to the general rule in United States v.
Toscanino, 500 F.2d 267 (2d Cir.1974).

12

The defendant in Toscanino alleged that he had been forcibly abducted from
Uruguay and tortured and interrogated over seventeen days at the behest of the
United States government. Id. at 269-70. Concluding that the government's
alleged conduct "shocks the conscience," id. at 273, the Second Circuit held
that the Ker-Frisbie doctrine must yield to the requirements of due process and,
accordingly, that a court must "divest itself of jurisdiction over the person of a
defendant where it has been acquired as the result of the government's
deliberate, unnecessary and unreasonable invasion of the accused's
constitutional rights." Id. at 275.

13

In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.1975), which the
Second Circuit decided shortly after Toscanino, the court effectively limited its
holding in Toscanino to that case's shocking facts. In Lujan, a federal prisoner
claimed that his due process rights had been violated under Toscanino because
he had been forcibly abducted in Bolivia and then taken to New York. Id. at 63.
Despite the fact that Lujan was forcibly abducted, the Second Circuit applied
Ker-Frisbie and refused to order the district court to divest itself of jurisdiction,
observing that "the government conduct of which [Lujan] complains pales by
comparison with that alleged by Toscanino." Id. at 66. The court explained that
"[l]acking from Lujan's petition is any allegation of that complex of shocking
governmental conduct sufficient to convert an abduction which is simply illegal
into one which sinks to a violation of due process."4 Id.

14

Subsequent decisions of the Supreme Court indicate that there is reason to

doubt the soundness of the Toscanino exception, even as limited to its flagrant
facts. A year after Toscanino was decided, the Supreme Court generally
reaffirmed the validity of the Ker-Frisbie doctrine, refusing to "retreat from the
established rule that illegal arrest or detention does not void a subsequent
conviction." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54
(1975). More recently, in United States v. Alvarez-Machain, 504 U.S. 655, 112
S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Court held that the rule of Ker-Frisbie
was fully applicable to a case in which a Mexican national had been forcibly
abducted, even though the abduction may have been "shocking" and in
violation of general international law principles. Id. at 669-70, 112 S.Ct. 2188.
In light of these cases, it appears clear that the Ker-Frisbie doctrine has not
eroded and that the exception described in Toscanino rests on shaky ground.
United States v. Matta-Ballesteros, 71 F.3d 754, 763 (9th Cir.1995) (observing
that, "[i]n the shadow cast by Alvarez-Machain, attempts to expand due process
rights into the realm of foreign abductions, as the Second Circuit did in
[Toscanino], have been cut short"). Even more apparent is that the alleged
circumstances surrounding the Coast Guard's seizure of the defendant in this
case do not come close to resembling the "shocking governmental conduct" that
the Second Circuit equated with a violation of due process in Toscanino.
Accordingly, even if we were to adopt the Toscanino exception to Ker-Frisbie,
it would not apply to the facts of this case.

15

A second possible exception to the rule of Ker-Frisbie, rooted in cases from the
Prohibition era, relates to the violation of a treaty. In Ford v. United States, 273
U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927), the Supreme Court distinguished
Ker, explaining that "the Ker case does not apply here" on the ground that "a
treaty of the United States is directly involved." Id. at 605-06, 47 S.Ct. 531.
Although the Court ultimately held that the defendants failed to raise timely the

jurisdictional issue, the Court's dictum regarding Ker clearly indicated that "the
rules may be quite different" when a treaty has been violated. United States v.
Postal, 589 F.2d 862, 874 (5th Cir.1979).
16

In Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933), a
later Prohibition-era case involving the same treaty discussed in Ford, the
Supreme Court again acknowledged that the government may limit its own
jurisdiction by entering into a treaty. In that case, the government seized the
British vessel Mazel Tov outside the territorial seas of the United States and
then brought suit against it. Id. at 108, 53 S.Ct. 305. Cook, as master and bailee
of the Mazel Tov, argued that the trial court lacked jurisdiction to adjudicate
rights in connection with the vessel because it was seized outside the territorial
limits of the United States and in violation of a treaty with Great Britain. Id.
The Court agreed, noting that the treaty in question fixed the conditions under
which a vessel may be seized and taken for adjudication in accordance with the
country's applicable laws. Id. at 121, 53 S.Ct. 305. Accordingly, it held that "
[o]ur government, lacking power to seize, lacked power, because of the Treaty,
to subject the vessel to our laws." Id. In so holding, the Court distinguished
prior cases where forfeitures of vessels wrongfully seized by the Navy were
upheld, explaining that those cases involved vessels of American registry and
that "the seizures did not violate any treaty, but were merely violations of the
law of nations because made within the territory of another sovereign." Id. at
122, 53 S.Ct. 305.

17

Interpreting the broader significance of Cook and Ford, the Fifth Circuit
concluded that those cases "stand for the proposition that self-executing treaties
may act to deprive the United States, and hence its courts, of jurisdiction over
property and individuals that would otherwise be subject to that jurisdiction."
Postal, 589 F.2d at 875 (emphasis added). In clarifying that not "every treaty to
which the United States is a party acts to limit the jurisdiction of its courts," the
court explained that "treaties affect the municipal law of the United States only
when those treaties are given effect by congressional legislation or are, by their
nature, self-executing." Id. (citing Whitney v. Robertson, 124 U.S. 190, 194, 8
S.Ct. 456, 31 L.Ed. 386 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 311, 7
L.Ed. 415 (1829); Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952);
Dickinson, "Are the Liquor Treaties Self-Executing?" 20 Am.J.Int'l L. 444
(1926)). When a treaty is self-executing, "no legislation [is] necessary to
authorize executive action pursuant to its provisions." Cook, 288 U.S. at 119, 53
S.Ct. 305.

18

This second exception to the Ker-Frisbie doctrine is buttressed by the more

recent Alvarez-Machain case, in which the Supreme Court observed that the

Ker-Frisbie doctrine is inapplicable to cases where a person is forcibly

abducted from a country in violation of an extradition treaty to which the
United States is a party. 504 U.S. at 662, 112 S.Ct. 2188. To defeat jurisdiction
in such a case, the Eleventh Circuit observed that, under Alvarez-Machain, "a
defendant must demonstrate, by reference to the express language of a treaty
and/or the established practice thereunder, that the United States affirmatively
agreed not to seize foreign nationals from the territory of its treaty partner."
United States v. Noriega, 117 F.3d 1206, 1213 (11th Cir.1997); see also United
States v. Rezaq, 134 F.3d 1121, 1130 (D.C.Cir.1998). However, the Ninth
Circuit noted that, if a treaty does not specifically prohibit the abduction of
foreign nationals, then it will not cause a court to be divested of jurisdiction
over the abducted individual. Matta-Ballesteros, 71 F.3d at 762 (citing AlvarezMachain, 504 U.S. at 664-66, 112 S.Ct. 2188).
19

In this case, the District Court appears to have determined that it lacked
jurisdiction over Best based loosely upon this second exception to the rule of
Ker-Frisbie, although it did not make any explicit reference to the doctrine.5
Because the Coast Guard seized Best from a foreign vessel beyond the
territorial sea of the United States, the District Court reasoned that the seizure
was "subject to established international law of the high seas universally
recognized by all civilized nations including the United States." Memorandum
Opinion ("Mem.") at 12. Just as the Fifth Circuit in Postal held that the
violation of a self-executing treaty divested the trial court of jurisdiction, the
District Court here held that the violation of international law arising from the
seizure of Best prevented it from exercising personal jurisdiction over the
defendant. We disagree.

20

As the Fifth Circuit observed in Postal, a defendant "cannot rely upon a mere
violation of international law as a defense to the court's jurisdiction." 589 F.2d
at 884. We find substantial support for that position in Supreme Court cases
such as Alvarez-Machain and Cook, which both recognize that the rule of KerFrisbie is not muted when there is a "violation of general international law
principles." Alvarez-Machain, 504 U.S. at 669, 112 S.Ct. 2188; Cook, 288 U.S.
at 122, 53 S.Ct. 305. Accordingly, we conclude that, unless the government's
seizure of Best was in violation of a treaty between the United States and
Brazil, the District Court has jurisdiction over Best in spite of the potential
violation of international law.

21

In its Memorandum Opinion, the District Court cited to the following

provisions of three international treaties: Article 24 of the Convention of the
Territorial Sea and the Contiguous Zone, April 29, 1958, art. 24, 15 U.S.T.
1606, 516 U.N.T.S. 205 ("Territorial Sea Convention");6 Article 22 of the

Convention of the High Seas, April 29, 1958, art. 22, 13 U.S.T. 2312, 450
U.N.T.S. 82 ("High Seas Convention");7 and Article 33 of the United Nations
Convention on the Law of the Sea, U.N.Doc. A/CONF.62/122 (1982),
reprinted in 21 I.L.M. 1261-1354 (1982) ("UNCLOS").8 The court did not
recognize, however, that Brazil is a party neither to the Territorial Sea
Convention nor to the High Seas Convention. Furthermore, although UNCLOS
was signed by the United States in 1994 and subsequently transmitted to the
United States Senate, it has not been ratified by the Senate and, accordingly,
does not have the force of law.9 Because none of these are treaties to which
both Brazil and the United States are parties, the seizure of Best from the
Cordeiro de Deus could not have been in violation of any of them. Thus, we
find that the treaties cannot serve to limit the rule of Ker-Frisbie in this case.
22

Best maintains that, even in the absence of an applicable treaty between the
United States and Brazil, the United States limited its own jurisdiction through
Presidential Proclamation No. 7219, 64

Page 316-334
23
Fed.Reg.
48701 (Aug. 2, 1999) ("Proclamation"), which the District Court described
as being "expressly intended to bring federal criminal jurisdiction in line with
accepted international law." Mem. at 17. The Proclamation, signed by President
Clinton in 1999, provides, in relevant part:
24

The contiguous zone of the United States is a zone contiguous to the territorial
sea of the United States, in which the United States may exercise the control
necessary to prevent infringement of its customs, fiscal, immigration, or
sanitary laws and regulations within its territory or territorial sea, and to punish
infringement of the above laws and regulations committed within its territory or
territorial sea.

25

Id. (emphases added). Best argues that the language of the Proclamation
demonstrates that the government can only "punish" individuals found in the
contiguous zone for the infringement of laws "committed within its territory or
territorial sea." Because the Cordeiro de Deus never entered the territorial sea
of the United States, he contends that he cannot be punished under the language
of the Proclamation. Even if we were to agree with Best's interpretation of the
above-quoted language, however, the Proclamation also states that "[n]othing
in this proclamation amends existing Federal or State law[.]" Id. Accordingly,
we must reject any suggestion that the Proclamation has an effect on the scope
of the well-established rule of Ker-Frisbie.

IV.
26

Because the facts surrounding the seizure of the defendant in this case clearly
do not place it within any potential exceptions to the Ker-Frisbie doctrine, we
conclude that the doctrine is fully applicable to this case. Thus, Robert Best,
who was seized by the Coast Guard beyond the territorial waters of the United
States aboard a vessel sailing under the Brazilian flag, may be tried in federal
district court for the violation of United States immigration laws even though
the government did not secure Brazil's consent to intercept the vessel and seize
the defendant. We will therefore reverse the District Court's order dismissing
the indictment and will remand the case for trial.

Notes:
1

A nation's contiguous zone lies adjacent to its territorial seas. As explained by

Presidential Proclamation 7219, "[i]nternational law recognizes that coastal
nations may establish" these zones so as to "exercise the control necessary to
prevent infringement of [their] customs, fiscal, immigration, or sanitary laws
and regulations within [their] territory or territorial sea, and to punish
infringement of the above laws and regulations committed within [their]
territory or territorial sea." Presidential Proclamation No. 7219, 64 Fed.Reg.
48701 (Aug. 2, 1999). Under Article 24 of the Convention of the Territorial Sea
and the Contiguous Zone, April 29, 1958, art. 24, 15 U.S.T. 1606, 516
U.N.T.S. 205, a nation's "contiguous zone may not extend beyond twelve miles
from the baseline from which the breadth of the territorial sea is measured."

The government moved to dismiss the charges against two of the other
defendants named in the original indictment. Another defendant named in the
original indictment pled guilty

Best contends that the government's appeal is untimely because, according to

him, the notice of appeal was not "filed" until November 27, 2001, the date it
was mailed to Best's counsel. Under 18 U.S.C. 3731, the government may
appeal from a district court order dismissing an indictment, as it did here. Under
Fed. R.App. P. 4(b)(1)(B), the government's notice of appeal must be filed in
the district court within 30 days after the filing of the order being appealed or
the filing of a notice of appeal by any defendant. Because the government filed
its notice of appeal on November 21, 2001, within the permissible 30 days, the
government was timely in filing. Under Fed. R.App. P. 3(a), an appellant is
obligated to provide its notice of appeal only to the district clerk, and not to any
other parties. The district clerk then serves notice of the filing to all other

parties pursuant to Rule 3(d). We also note that the government would have
been timely had it waited 30 days after filing its motion for reconsideration to
file its notice of appealSee Government of the Virgin Islands v. Lee, 775 F.2d
514, 519 (3d Cir.1985).
4

Specifically, the court noted that, unlike Toscanino, Lujan did not claim that he
was knocked unconscious by a gun blow, that drugs were administered to
subdue him during the flight to the United States, or that the United States
Attorney was aware of his abduction or of any subsequent interrogationLujan,
510 F.2d at 66. Perhaps most importantly, Lujan "disclaim[ed] any acts of
torture, terror, or custodial interrogation of any kind." Id.

The court distinguishedAlvarez-Machain and other cases that discuss KerFrisbie on the ground that they did not involve an abduction from the high seas,
but rather from another country or in violation of an extradition treaty. Mem. at
12. To the extent that the court meant to suggest that the Ker-Frisbie doctrine is
wholly inapplicable to all forcible abductions of foreign nationals that take
place on the high seas, we find no support for that position and we reject it.

Article 24 of the Territorial Sea Convention provides:

In a zone of the high seas contiguous to its territorial sea, the coastal State may
exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary
regulations within its territory or territorial sea;
(b) Punish infringement of the above regulations committed within its territory
or territorial sea.

The contiguous zone may not extend beyond twelve miles from the baseline
from which the breadth of the territorial sea is measured

Where the coasts of two States are opposite or adjacent to each other, neither of
the two States is entitled, failing agreement between them to the contrary, to
extend its contiguous zone beyond the median line every point of which is
equidistant from the nearest points on the baselines from which the breadth of
the territorial seas of the two States is measured

Article 22 of the High Seas Convention provides:

Except where acts of interference derive from powers conferred by treaty, a

warship which encounters a foreign merchant ship on the high seas is not
justified in boarding her unless there is reasonable ground for suspecting:
(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That, though flying a foreign flag or refusing to show its flag, the ship is, in
reality, of the same nationality as the warship.
2

In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship
may proceed to verify the ship's right to fly its flag. To this end, it may send a
boat under the command of an officer to the suspected ship. If suspicion
remains after the documents have been checked, it may proceed to a further
examination on board the ship, which must be carried out with all possible
consideration

If the suspicions prove to be unfounded, and provided that the ship boarded has
not committed any act justifying them, it shall be compensated for any loss or
damage that may have been sustained

Article 33 of UNCLOS provides:

In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its
territory or territorial sea.

The contiguous zone may not extend beyond 24 nautical miles from the
baselines from which the breadth of the territorial sea is measured

Under the Constitution, the President has the power to make treaties "provided
two thirds of the Senators present concur." U.S. Const. art. II, 2, cl. 2